Articles Posted inLocally Speaking

A bill pending in the Delaware legislature would expand the state’s anti-discrimination statute. House Bill 4 would prohibit discrimination on the basis of domestic violence, sexual offense, or stalking. If passed, the bill would have important implications for Delaware employers. Here’s what you need to know.

Which Employees Would Be Protected?

If adopted, the bill would prohibit employers from discriminating against employees because the employee was a victim of domestic violence. There are several scenarios where the implications of the law would be significant.

At our Annual Employment Law Seminar last week, I spoke about the “Facebook Privacy” bill that was then pending in Delaware’s House of Representatives. The bill passed the House on later that day and is now headed to the Senate. For those of you who weren’t in attendance last week, here’s a brief recap of the proposed law.

The stated purpose of HB 109 is to protect individuals’ privacy in their personal social media accounts. Generally speaking, HB 109 would prohibit employers from requiring or requesting that an employee or applicant give the employer access to their personal social-media accounts-either by giving up their passwords or by logging in and letting the employer take a look (also known as “shoulder surfing”).

As we all know, though, with any law, the devil is in the details. And there are, not surprisingly, a few devilish details. For example. . .

Well, it’s happened again. The Delaware Employment Law Blog was selected as one of the Top 100 Legal Blogs in the country by the ABA Journal Magazine. Because this is my fifth year as an honoree, I’ve been inducted into the magazine’s Hall of Fame, where I join my friend Dan Schwartz, whose Connecticut Employment Law Blog was inducted in 2013. In my world, this is the most prestigious award a legal blogger can receive and it is such an honor to have been selected again. It is, as the saying goes, truly an embarrassment of riches.

To those who nominated us for the award, thank you. To all of our readers, thank you. And to all of the many, many, many employment law bloggers who continue to set an incredibly high standard for the rest of us, thank you.

I share the honor this year with seven other employment-law bloggers, each of who does a tremendous job reporting on the various aspects our shared practice area. Many of you already read the blogs of my co-winners but, if you don’t, you should. I continue to be humbled by the company I have been permitted to keep.

Delaware Gov. Jack Markell signed into law legislation that expands the protections provided to employee-whistleblowers. H.B. 300 extends whistleblower protections to employees who report noncompliance with the State’s campaign-contribution laws,who participate in an investigation or hearing regarding an alleged violation of the campaign-contribution laws, or who refuses to violate the campaign-contribution laws.

The practical effect of this new protection is limited, as it applies to a fairly narrow group of employees-those whose employer has some involvement in political fundraising. But it serves as an excellent reminder about the importance of preventing unlawful retaliation.

Retaliation claims continue to top the list of claims filed with the EEOC. Not only are they popular but they are some of the most successful for plaintiffs. The reason for its popularity and its success is the same-retaliation happens.

According to the synopsis, the bill is part of a national movement, known as People First Language (“PFL”) legislation, intended to “promote dignity and inclusion for people with disabilities.” PFL requires that, when describing an individual, the person come first, and the description of the person come second.

For example, when using PFL, terms such as “the disabled” would be phrased, “persons with disabilities.” This language emphasizes that individuals are people first and that their disabilities are secondary. I think this is an outstanding initiative.

Employment legislation has been a popular topic for the Delaware General Assembly in recent months. Here are two recently proposed legislation that Delaware employers should keep an eye on.

Employment Protection for the Disabled

The General Assembly has proposed a very simple change to the Delaware Persons with Disabilities Employment Protections Act (DPDEPA), which would change the definition of “employer.” More specifically, they have proposed decreasing the threshold for coverage from 15 employees (the same as the Americans with Disabilities Act) to 4 employees (the same as the Delaware Discrimination in Employment Act).

The wait is over! Registration is now open for YCST’s Annual Employment Law Seminar. This year’s seminar will be held on May 8, 2014, at the Chase Center on the Riverfront in Wilmington. Check out the registration brochure for specific topics, speakers, and schedule. We hope to see you there!

The Family and Medical Leave Act has been a part of the workplace for more than a decade, so it’s gotten easier for HR to administer, right? Not so. Confusing regulations, coupled with numerous recent changes at both the legislative and regulatory levels and conflicting court decisions, ensure that FMLA continues to be one of the biggest compliance headaches for employers.

Let us help you clarify the confusion surrounding the numerous legislative and regulatory changes to the FMLA and get answers to all your FMLA questions at this advanced-level seminar just for Delaware employers. Learn More.

So-called “ban-the-box” initiatives, which limit employers’ inquiries into an applicant’s criminal history, have been adopted by several cities and municipalities. Philadelphia adopted such a law in the Spring of 2011. The City of Wilmington joined the ban-the-box bandwagon in Fall 2012, when then-Mayor Baker signed an executive order that removed a question about criminal convictions from job applications. But that executive order applied only to applicants seeking work with the City of Wilmington. Other Delaware employers have not been subject to these restrictions.

H.B. 167 proposes to limit when public employers and government contractors may inquire about or consider the criminal background or credit history. The employer would not be permitted to ask about this information until “after it has determined that the applicant is otherwise qualified and has conditionally offered the applicant the position.” Thus, a covered employer would be prohibited from asking about criminal or credit history until at least the first interview-no more checkboxes on job application.

Delaware’s Mini-COBRA law, enacted in May 2012, allows qualified individuals who work for employers with fewer than 20 employees to continue their coverage at their own cost, for up to 9 months after termination of coverage. When it was passed, the legislature provided that the provisions of the Mini-COBRA statute:

shall have no force or effect if the Health Care bill passed by Congress and signed by the President of the United States of America in 2010 is declared unconstitutional by the Supreme Court of the United States of America or the provisions addressed by this Act are preempted by federal law on January 1, 2014, whichever first occurs.Continue reading

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Delaware Employment Law Blog ("Blog") is intended for informational purposes only and does not contain any legal advice. The authors of the Blog are attorneys in the law firm of Young Conaway Stargatt & Taylor, LLP, and the views expressed by one or more of the authors, including comments posted by registered visitors, solely reflect the opinions of those authors and not those of the firm or its clients. The publication of and posting to the Blog does not create an attorney-client relationship and the authors assume no liability for the dissemination of attorney-client or confidential information posted on the Blog by registered or unauthorized visitors. The Blog is not intended to be advertising of legal services or any other service. The authors assume no responsibility for inaccuracies.

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